Thomas' Adm'r v. Maysville Gas Co.

• Decision Date: 29 March 1900
• Citation: 108 Ky. 224,56 S.W. 153
• Parties: THOMAS' ADM'R v. MAYSVILLE GAS CO. [1]
• Court: Kentucky Court of Appeals

56 S.W. 153

108 Ky. 224

THOMAS' ADM'R v. MAYSVILLE GAS CO. ^[1]

Court of Appeals of Kentucky.

March 29, 1900

Appeal from circuit court, Mason county.

"To be officially reported."

Action by the administrator of Isaac Thomas against the Maysville Street-Railway Company and the Maysville Gas Company to recover damages for the death of plaintiff's intestate. Judgment for defendant gas company, and plaintiff appeals. Reversed.

A. E Cole & Son and Thos. R. Phister, for appellant.

A. M J. Cochran, for appellee.

PAYNTER J.

This action was instituted by the appellant against the Maysville Street-Railway Company and the appellee, the Maysville Gas Company. The street-railway company operated an electric car line in the city of Maysville, and the appellee, the Maysville Gas Company, was engaged in the business which its name suggests; and, in addition thereto, it had in its possession and control a dynamo, and thus supplied the street-railway company with electricity to operate its car line. The wires of the street-railway company were constructed along the streets of the city, and a guy wire had been broken loose, and, not being properly insulated, it was charged with electricity; and as the plaintiff's intestate, a boy, was passing along, he came in contact with it, which resulted in producing his death. The trial resulted in a verdict against the street-railway company, from which no appeal seems to have been prosecuted. At the conclusion of the testimony for the plaintiff, the court instructed the jury to find for the appellee, the Maysville Gas Company, and it is to review the action of the court in that regard that this appeal is prosecuted. So the important question in this case is as to whether it is responsible for the death of the boy, if it was the result of negligence in failing to keep the wires charged by it with electricity properly insulated.

There are some minor questions raised, but it is sufficient to say that we agree with the court below in regard thereto. However, at this point we will add that the court properly compelled the appellant to elect which cause of action he would prosecute; his right to recover being restricted either to the common-law cause, for mental and physical suffering or the statutory cause, for the death of his intestate. Railway Co. v. Barclay's Adm'r (Ky.) 43 S.W. 177. It is not necessary to consider the question as to whether the motion was made in time, as the case is reversed, and on the next trial the motion can be heard at the proper time.

The street-railway company owned and had charge of the wire, and the gas company generated and sent into the wire the electricity. The gas company received so much per month for supplying the wires of the street-railway company with electricity to operate its line of street cars, and it had no interest in the car line, except that its income might enable it to pay the bill for the electricity. That there was a duty imposed by law upon the street-railway company to keep its wires properly insulated, so that those whose business or pleasure brought them in dangerous proximity to them might be protected from the deadly current which they conducted cannot be questioned. Without the electric current which the gas company sent through them, contact with them was harmless. When so charged, they became instruments of death, threatening the lives of those who perchance came in contact with them. Did the fact that the gas company supplied the harmless wires with the force which converted them into a death-dealing agency make it responsible for the injury which resulted in the death of the intestate? The exact question submitted has not, so far as we are aware, been answered by any court of last resort. Some cases are cited by counsel, but the facts of those cases are not similar to the facts of this case. Therefore we must find some signboard along the new road, and, if we cannot so find the way to a proper conclusion, we will be forced to swing a sickle into the field of reason, and there harvest a principle which can be crystallized into a just rule to apply to cases like this one. By the machinery in use by the gas company, it produced and controlled the electricity. It is presumed to, and did, know the dangerous force it was putting in motion, and that it constantly imperiled the lives of those who passed along the streets where the wires were in use, unless they were properly swung and insulated. Knowing...